Kaplan v Gioia Props.

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Kaplan v Gioia Props. 2013 NY Slip Op 32206(U) September 13, 2013 Supreme Court, New York County Docket Number: 150445/2012 Judge: Louis B. York Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/17/2013 1] INDEX NO. 150445/2012 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/17/2013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 1-. 1 SD "+~~ JJ V Justice l~~~r~~ INDEX NO. MOTION DATE -vMOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to!for _ _ _ _ _ __ PAPERS NUMBERED Notice of Motion! Order to Show Cause - Affidavits - Exhibits ... en - Answering Affidavits - Exhibits --------------- Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 2 o en 0 Yes D No c:( Cross-Motion: a: ¢ Upon the foregoing papers, it is ordered that this motion w CJ w2 u- ~~ ~ t9lO. Jfl clt.v-dl.jt, ).,~ ~!~()Av\,t~ D~fJ. (}...;J~~:r...jJ./ en...J ~...J "'0 OLL t-W OJ: Wt- a:a: a:0 ~LL W a: > ...J ...J ~ LL tU W D- en W a: en w en c:( o u z J.S.C. 0 FINAL DISPOSITION ~ Check one: ~ Check if appropriate: o ~ NON-FINAL DISPOSITION [~DO NOT POST :-1 SUBMIT ORDERI JUDG. ~ REFERENCE C SETTLE ORDERI JUDG. [* 2] --~--~~.-~ ---------~~~ Supreme Court of the State of New York County of New York Part 2 INDEX NO. 150445/2012 LISA KAPLAN and JUSTIN SPATES, Decision/Order Plaintiffs, Present: Hon. Louis B. York Justice, Supreme Cou-rt - againstGIOIA PROPERTIES, Defendant. This motion to strike defendant's answer is denied for two reasons. One, movant did not comply with the preliminary conference order, which, in three sections, requires the parties to contact the court and schedule a telephone conference if a discovery dispute arises, not to resort directly to motion practice. The Court also notes that plaintiff brought this motion over two months after the problem arose. The Court requires timely applications or a showing of good cause for the delay. Two, under NYCRR 202.7, an affirmation of good faith must accompany all discovery motions. Moreover, subsection (c) provides that this affirmation must "indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held." In the absence of a good faith affirmation, the court must deny the motion. See Fulton v. Allstate Ins. Co., 14 A.D.3d 380,382, 788 N.Y.S.2d 349,351 (1 5t Dept. 2005). Denial of the motion is also appropriate where the motion is insufficiently detailed, does not show that the movant tried to 1 -------------- [* 3] - ~~ - -~--~- obtain ordered discovery prior to initiating the motion or is otherwise inadequate. See, e.g" Chervin v. Mereura, 28 A.D.3d 600,602,813 N.Y.S.2d 746, 748 (2 nd Dept. 2006). Here, a single letter to defendant in March does not constitute a good faith effort to resolve the discovery problems. See Amherst Synagogue v. Schuele Paint Co., bie., 30 A.D.3d lOSS, 10S6-S7, 816 N.Y.S.2d 782, 783 (4th Dept. 2006). Moreover, it appears that the parties have ignored the July 11,2013 Note ofIssue deadline. The Court schedules the parties for a status conference at 2:00 pm on Wednesday, October 9,2013 at 71 Thomas St. Room 20S, and strongly advises the parties to be ready to file the Note of Issue at that time. Therefore, it is ORDERED that the motion is denied; and it is further ORDERED that the parties shall appear for a status conference at 2:00 pm on Wednesday, October 9,2013 at 71 Thomas St. Room 20S. ENTER: Louis B. York, lS.C. L.OUIS 8. YORK -......-.......~iW'4:&t.~_ J.B.C. "~ ... ¢ ,;'. 2

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